Thompson v. Savage , 47 Iowa 522 ( 1877 )

Eothrook, J.

i tax sale: nocentpur-11' chaser. I. It appeal’s from the abstract that certain motions and demurrers wei’e presented and ruled upon. The foregoing statement of facts presents the real ques-ti°ns involved in the case, and for the sake of brevity we will omit further allusion to the abstract. The evidence satisfactorily shows that Stevens purchased the land in good faith, for a valuable consideration, and without any notice of the plaintiff’s claim. When he made the purchase and took his conveyance the tax deed had been decreed to be void.

Under these circumstances. he could not be charged with constructive notice of plaintiff’s claim for taxes. There was no record, an examination of which would impart such notice to him.

II. We do not think the evidence shows that the former decree was obtained by fraud. It was distinctly charged in the cross-petition that no levy of any taxes was made for the year for which the land was sold. To this cross-petition the defendant made no answer. The court found the fact to be as alleged, and entered a decree accordingly. The evidence in this case falls far short of showing that this was procured to be done by; the fraudulent acts of defendants or their attorney.

We do not determine whether plaintiff has the right to attack the decree in this suit. It is not necessary that we should do so.

2. —: -: recovery for taxes paid, III. There having been no levy of taxes for the year 1863, the county and State had no claim for taxes for that year. The sale and deed conferred no right upon plaintiff nor c? j. his grantor. The payment made at the tax sale

was a payment that the owuer of the land was not required to make. But the plaintiff and his grantor supposed the tax sale was valid, and in good faith paid the subsequent taxes. These payments were for the benefit of the defendants, E. B. Savage and J. B. Savage, who were then the owners of the land. In Claussen & Kuehl v. Rayburn, 14 Iowa, 136, and in Orr v. Travacier, 21 Id., 68, it was held that taxes paid in good faith by the holder of a void tax title could be recovered of the owner of the land, because the statute then in force made taxes paid by a tax sale purchaser a lien upon the land. The same may be said of the statute in force when the tax in controversy in this case was paid. Code, § 889. But as there was no levy of taxes for the year for which this land was sold, plaintiff can only recover the legal taxes actually paid, and interest at six per cent per annum. Early v. Whittingham, 43 Iowa, 168. And he can only recover for the taxes paid within five years next preceding the commencement of the action to recover the same. Brown & Sully v. Painter. 44 Iowa, 368. This was the basis of the finding of the District Court, which we think was correct. The cause will be affirmed upon both appeals.

Affirmed.